B. The Place of Constitutions as “Supreme Laws”

Various studies address the existence of a distinctive kind of constitutionalism in common law countries. Some of them focus on how the logic of common law makes it possible for written constitutions to be applied in a manner consistent with the theoretical framework of customary constitutional law. For example, American scholars have argued that the framers of the United States Constitution intended it to be interpreted in light of customary constitutional law.^{Footnote 12} David Strauss coined the phrase “common law constitutional interpretation” to explain how the common law can be a method in constitutional interpretation.^{Footnote 13} Others have noted the difference between American constitutionalism and Commonwealth constitutionalism with respect to the endurance of the British tradition of legislative supremacy in Commonwealth constitutional settings.^{Footnote 14} The literature thus underlines the existence of common law constitutionalisms, and yet it is still mostly focused on how nearly constitutional experiences in common law countries approach the definitional model of written constitutions provided with a bill of rights and secured by a strong system of constitutional adjudication. After all, the term “constitution” has an essential uncontested core meaning, which implies some forms of limitation of powers for the sake of enjoyment of freedoms.^{Footnote 15}

Still, if one explores constitutional practice, it appears that such minimum area of agreement on the term “constitution” does not say much on how the supremacy of a fully-fledged constitutional text is actually secured. The deconstruction of the term “constitution” in some jurisdictions, as well as the hypertrophy of constitutional law in others, may leave scholars confused about the supremacy claim of written constitutions. Stephen Gardbaum addresses the issue in the Oxford Handbook of Comparative Constitutional Law. He underlines that the conventional distinction between big-c and small-c constitutionalism has become of little help to understand contemporary constitutional practice across different jurisdictions and legal traditions.^{Footnote 16} According to Gardbaum, the limited explanatory power of such distinction is proved by many factors: The development of theories of unwritten constitutional law in countries such as the US; the creation of the category of constitutional statutes in the UK; the constitutionalization of international law; and, finally, the theory of the “total constitution” as an example of the needlessness of the distinction between constitutional law and other laws in a legal system.^{Footnote 17}

Such general trends or transformations possibly share the same roots, including globalization, supranational integration, and the success of human rights theories. Against this backdrop, as this Article argues, the legal tradition plays a role in shaping constitutional discourse. So, irrespective of the most recent developments in constitutional practice at the global level, constitutional supremacy is differently conceptualized across jurisdictions.

Indeed, if a civil lawyer looks at how constitutional cases are framed in common law countries, he or she may verify that some expected implications of constitutional supremacy are not straightforward consequences in common law jurisdictions equipped with written constitutions. Implications that a civilian would expect are: a) The text is comprehensive, though it may need marginal integration from constitutional praxis or implementing legislation; b) the constitution is normative no matter how much it reflects a traditional legal ethos; and c) constitutional arguments are a ruling-out move in litigation, meaning that whenever a sound constitutional argument is introduced, it takes precedence on other arguments and needs to be addressed by the judge in the case.^{Footnote 18} If one takes a close look at constitutional practice in common law jurisdictions, one can easily realize that these three particular circumstances are not always verified. It can happen that: a) The constitution coexists with a large body of conventions and ordinary laws with constitutional status; b) the constitution interacts with a traditional legal ethos; and c) constitutional arguments can be easily avoided in litigation. These differences rest on constitutional history, as far as a) and b) are concerned, and on the structure of constitutional adjudication, as far as c) is concerned. They need, however, to be further explored to understand how constitutions are indeed supreme laws of the land without claiming to overtake the traditional legal ethos.

Here is where the sources of law, the legal bases lawyers would consider authoritative to justify or require conduct, come into play.

In countries where there is a written constitution and an entrenched bill of rights, as in Canada, as well as in countries where the constitution is partially codified, as in Australia, the constitutional nature of a source of law does not exclusively derive from its nomen.^{Footnote 19} Rather, it depends on the ability of that source to substantially express certain essential characteristics generally ascribed to the category of constitutional sources. Therefore, understanding how and to what extent constitutional sources distinguish themselves from other sources of law, both in terms of formal hierarchy and in terms of their normativity, requires addressing the internal logic of the doctrine of sources of law in the common law tradition.

A general premise is needed: If one looks for the formally ordered hierarchical theory of sources of law in civil law systems, one may well be disappointed. In fact, a Kelsenian Stufenbau (step by step construction) does not have a precise homologue in the common law tradition,^{Footnote 20} including in those countries in which written constitutions explicitly declare the constitution to be the supreme law of the land.^{Footnote 21} Moreover, the sources of law have not been the object of many theoretical studies in the field of constitutional law, remaining a neglected subject for common lawyers.^{Footnote 22} Indeed, in British, Australian, and Canadian constitutional law textbooks, for example, there may be systematic classifications of sources of law, while a broad theoretical construction is generally missing.^{Footnote 23} Such an approach reveals common lawyers’ predilection for a conception of law as argumentative practice based on formal rules that determine the validity and the scientific rigor of legal arguments and yet largely developed as practical discourse rather than as the fulfilment of a precise theoretical and dogmatic construction.^{Footnote 24}

The absence of a Kelsenian Stufenbau, however, does not imply that a hierarchy of sources of law does not exist. Rather, it implies that hierarchy comes with an inherent flexibility.

The traditional English doctrine organizes legal materials in a hierarchical order, distinguishing between legislation, precedents, customs, and agreements.^{Footnote 25} Contemporary British lawyers use the same matrix, but they add international sources—both from the EU, which will no longer be the case, and from the ECHR—and the Constitution, broadly understood.^{Footnote 26} Common lawyers from other jurisdictions organize legal materials according to a hierarchy that starts with the written constitution, goes on with international sources—which are generally incorporated through statutes and thus made equal to legislation—and then proceeds with legislation, precedents, and customs.

The hierarchical principle is always activated in cases of conflict between sources, but not necessarily when it comes to the identification of the legal rule governing a case. In fact, litigation is largely governed by the argumentative choices of the parties. It means that the identification of the source of law governing the concrete case depends on how parties introduce the arguments in a lawsuit. Within this context, judges can easily avoid, if they want to, questioning the hierarchy of the source to be applied in the controversy.^{Footnote 27}

Ultimately, the lack of a Stufenbau means that the selection of applicable law, including sources of constitutional rank, is regulated according to a logic that has little, if anything, to do with both the metalegal foundation of the legal system—the Grundnorm—and a conditional concept of validity. This is not to say that a Grundnorm is not identifiable in abstract. Rather, it means such Grundnorm does not work as a theoretical criterion of selection of the applicable sources, nor does it create the need for judicial review on the validity of legislation. Therefore, the hierarchy does not serve the purpose of establishing the normativity of a source in its compliance with the principles of another hierarchically superior norm that dictates the conditions of validity of the inferior norm. There is thus no relationship of conditionality, in principle, between a hierarchically superior source and one that is inferior: The validity of the hierarchical inferior norm does not depend on its correspondence to substantive principles of the superior norm. Therefore, the hierarchy assumes a practical value for the solution of normative conflicts.

The theoretical backdrop of this approach matches with the principle of parliamentary sovereignty. Only when the Parliament has legislated on a certain matter are the precedents and the common law rules no longer applicable. Yet this does not necessarily have consequences in terms of validity of both the precedents and the common law. By contrast, invalidity occurs if a statute authorizes the enactment of secondary legislation. In this case, there is a relationship of conditionality between the two sources, such that the repeal of the legislative source also overtakes secondary legislative acts.

Such a framework concerning the functioning of the sources of law has been partially affected by written constitutions. When observed from the perspective of constitutional sources, however, this approach explains that constitutional supremacy does not in principle affect the validity of legislative acts which are in substantial contrast to the constitutional source, as it would be under Kelsenian doctrine. This is the reason why constitutional supremacy can be theoretically combined with some forms of legislative supremacy. Indeed, judicial review, even when it determines the annulment of legislation, has been almost everywhere justified after the establishment of constitutions and, therefore, in principle it is not immediately linked to the concept of constitutional rigidity. Courts have created such a link when they have eventually had to justify the power of constitutional adjudication.

The clearest and foremost example is the US Supreme Court welding together constitutional rigidity and judicial review of legislation in the well-known decision Marbury v. Madison,^{Footnote 28} where the Court held that ensuring the effectiveness of the Constitution as supreme law of the land implies that the Court should have the power to strike down legislative acts that are in conflict with constitutional provisions.

The Court resorted to the English legal tradition, namely to Sir Coke’s doctrine, elaborated in the decision Bonham’s Case.^{Footnote 29} Coke’s arguments about circumstances in which courts may hold acts of Parliament that are against common reason void^{Footnote 30} have been dropped in the context of a written constitution. Therefore, their jus naturalistic echo has been translated into an argument that rests on a solid basis of formal-legal logic. The argument, however, does not build a theoretical structure that binds together constitutional rigidity and judicial review of legislation with a more general hierarchy of sources of law, ordered according to relations of conditional validity. After all, the problem that the US Supreme Court intended to solve in that particular case was the protection of fundamental rights in an impartial way, with a view to preventing the dissolution of the original compact created by the signing of the federal Constitution. Indeed, Marbury v. Madison raised a right-based and remedy-oriented question.

Ultimately, the doctrine of the constitution as higher law coexists with a legal tradition that does not intend to systematize the sources of law according to a theoretical criterion for selection of the most legitimate source controlling the solution of the concrete case. Such approach makes it concretely possible for judges: a) To decide whether to frame an issue in constitutional terms or not; and b) to interpret constitutional provisions in light of non-constitutional norms without undermining the normativity of the written text.

So the hierarchy of the sources of law is theoretically compatible with the idea that: a) The constitution can be subsidised by other sources of law—precedents and common law—in constitutional argumentation, and b) those sources can take over the constitution under certain circumstances.

With a view to explain how the common law legal tradition resonates in constitutional discourse, it is proper to briefly address how constitutional supremacy is framed within the British system.

C. Is There Something Like “Constitutional Supremacy” in the British Tradition?

The codification of constitutional law in the Commonwealth determined the progressive estrangement of common law countries from the British tradition of unwritten constitutional law, entrusted with the care of the political culture.^{Footnote 31}

In parallel, both the spread of constitutional discourse and the processes of supranational integration have led British scholars and judges to question the foundation of the British model as far as both the structure of the system of sources of law and the development of constitutional law are concerned.^{Footnote 32} Examining this shift in the British system offers insight into how an unwritten and customary constitution is challenged, and yet not won, by arguments supporting the need to single out some laws and norms as paramount to the whole system. The purpose is to identify some of the arguments resonating in other common law countries’ constitutional discourse.

Defining the British uncodified constitution is not an easy task. In the absence of codification, alternative accounts of what the constitution is coexist. Some scholars describe it in terms of the specific arrangement of powers resulting from historical experience and documents, while others suggest that the constitution expresses a fixed set of normative principles.^{Footnote 33} The very need to frame British constitutional discourse in the form of an—albeit uncodified—constitution is contested by some scholars. Political constitutionalists, for example, either suggest that British constitutional practice was mostly forged by political choices rather than by normative principles, whether codified or not, or provide a normative framework according to which any form of legal supremacy of any law or substantive value would endanger the democratic ideal of political equality.^{Footnote 34}

For the purpose of the present study, it is not necessary to delve into the broader issue of the contents of the British constitution. Rather, this Article focuses on the conceptualization of hierarchical supremacy of some pieces of ordinary legislation implying that constitutional supremacy may have a place in British constitutional discourse. The recent proliferation of legislation to which some sort of constitutional status is attached suggests this may be a way of exploring the significance of constitutional supremacy. Indeed, from 1997 onwards, the UK experienced a series of constitutional reforms, concerning both the protection of rights and the organisation of infra-state powers. As a consequence, the Parliament randomly used the word “constitutional” to identify some defining features of the new British system.^{Footnote 35} It was the judiciary that started to make sense of some fundamental changes in powers arrangements by elaborating the category of constitutional statutes. Constitutional statutes are laws approved by ordinary procedure, but with substantially constitutional content. Such statutes are endowed with a peculiar force of resistance to repeal by succeeding legislative acts, even though they share the same formal characteristics as ordinary legislation.

An ordinary law’s inclusion into the category of constitutional statutes has been mainly a judicial choice, as there is no ad hoc legislative procedure for such statutes. Yet, as the process of exiting the European Union is showing, the Parliament may adopt special procedures in consideration of the constitutional character of the legislation that it intends to pass.^{Footnote 36}

The Miller judgement, which involved the constitutional requirement to trigger Article 50 TEU in order to exit the EU, clarified the meaning of constitutional statutes—also named as acts of “particular legal importance”—by addressing the need for parliamentary express repeal of the European Community Act 1972 (ECA).^{Footnote 37} Even before the Miller judgement, a long series of judicial decisions qualified the ECA and other sources as substantively constitutional.^{Footnote 38} Indeed, courts at the apex of the judicial system recognized the constitutional nature of the Petition of Rights of 1628, Bill of Rights of 1689, Act of Settlement of 1701, Representation of People Acts of 1832–84, Human Rights Act of 1998, the Scotland Act of 1998, Northern Ireland Act of 1998, Constitutional Reform Act of 2005, and Government of Wales Act of 2006.^{Footnote 39}

Lord Justice Laws identified two elements that make a statute constitutional: a) The ability to significantly influence the relationship between state and citizens; and b) the ability to extend or reduce the scope of fundamental rights.^{Footnote 40}

Given the lack of a formalized hierarchy between constitutional statutes and ordinary statutes, consequences of the constitutional nature of the former type are visible only when courts apply statutes qualified as constitutional. At the same time, consequences vary depending upon the content of the constitutional source and, to a not insignificant extent, upon judges’ sensitivity.

By looking at the case law, one can argue that constitutional statutes interact with ordinary statutes in three ways. First, constitutional statutes determine the rejection of the rule of implied repeal, whereby when Parliament adopts a law that is in conflict with a previous text, it must be assumed that Parliament implicitly intended to repeal the former law. The exception to the rule of implied repeal means that a constitutional statute can be repealed only when Parliament explicitly intends to produce such an effect. In the decision BH v. Lord Advocate,^{Footnote 41} Lord Hope writes, for a unanimous court, that the Scotland Act of 1998 is “incapable of being altered otherwise than by an express enactment.”^{Footnote 42}

Second, constitutional statutes enjoy a strengthened presumption of consistency. In cases of conflict between a substantially constitutional statute and an ordinary statute, courts have to interpret the latter in a manner consistent with the former or, when it is not possible, they give precedence to a legal solution that preserves the constitutional statute.^{Footnote 43}

Third, the constitutional nature of a statute determines the exclusion of the speciality rule every time the consequence is the non-application of the substantively constitutional source. For example, in the Brynmawr case,^{Footnote 44} concerning a conflict between the Government of Wales Act of 2006 (GOWA) and the School Standards and Framework Act of 1998, the Supreme Court clarified that the latter, although lex specialis, could not determine the non-application of GOWA because of its constitutional nature.

The Supreme Court’s hierarchy of sources in which constitutional statutes are set apart from other parliamentary statutes may correspond to an attempt to establish some form of constitutional supremacy.^{Footnote 45} It is, however, a controversial choice.

It has been challenged by scholars who point out inconsistencies in the Supreme Court’s understanding of the nature of such statutes.^{Footnote 46} It has also been questioned for being an incomplete definition. Indeed, some scholars underlined other relevant features of constitutional statutes, such as the ability to influence the exercise of powers or the ability to determine the conditions of validity of other norms in the legal system.^{Footnote 47} Others argue instead that the constitutional nature of a statute depends on its ability to affect four basic elements of the British constitution: The rule of law, the principle of parliamentary supremacy, the relations between Government and Parliament, and, finally, the vertical division of powers.^{Footnote 48}

In any case, this tentative hierarchy does not seem to correspond to a settled understanding of the theory and practice of sources of law under the British constitution. This lack of consensus in the legal community is visible in scholarly debates, and it also resonates in judicial practice. In fact, one can verify that the constitutional nature of a statute does not necessarily make it paramount to other statutes and, most importantly, to the common law. For example, in the Anufrijeva ruling,^{Footnote 49} the House of Lords made it clear that the fundamental rights protected in the legal system extend far beyond the provisions of the European Convention on Human Rights and correspond to the historical guarantees of common law, as well as to those deriving from other international human rights conventions. These guarantees are considered to be equivalent if not superior to those protected under the Human Rights Act of 1998. This understanding has been named common law constitutionalism, as it derives rights directly from the common law and it supports the unnecessariness of the entrenchment of fundamental rights.^{Footnote 50} So, common law constitutionalism, which is one of the competing narratives of British constitutionalism, is not necessarily compatible with the idea of the constitutional nature of some statutes. Indeed, it theoretically authorizes courts to develop a human rights law in a way that departs from the Human Rights Act, a statute that has been defined as constitutional.

With the caveat associated to a moment of profound transformation in the British constitution, and more broadly, in British constitutional law, there is room to conclude that “constitution” and “constitutional law” are still content-specific terms. Indeed, the constitutional nature of a norm rests on its content more than on its formal characteristics or on the legal consequences that it is able to determine on other sources of law in the legal system.

This is a conceptual bequest that still has a grip on the development of constitutional discourse in other common law countries, as the next two sections will argue in more details.

D. Constitutional Supremacy in the Context of Common Law Written Constitutions

Within common law constitutional experiences, constitutional supremacy, rigidity, and judicial review are not contextually established under the constitution. Rather, the logical link between a) constitutional supremacy, b) constitutional rigidity, and c) judicial review is established ex post. Such a framework helps consolidate a legal practice in which the constitution is at the same time supreme and open to be subsidised by the legal tradition. As a result, the supremacy of constitutions is grounded in the constitutions’ ability to preserve historically entrenched and successfully tested legal solutions. Moreover, constitutional supremacy is in principle compatible with some sort of legislative supremacy in matters that do not interfere with constitutional mandates.

For example, in Australia, the written Constitution does not establish a complete system of fundamental values and principles that permeate the whole legal order. Though the Constitution contains some specific individual freedoms,^{Footnote 51} the frame of government is not designed to ensure a system of explicitly entrenched fundamental rights. As a consequence, the normativity of the written constitution is based on two separate, yet related, assumptions: That constitutional supremacy does not rule out legislative supremacy and that the common law provides for the recognition of fundamental rights.

Recalling elements of Australian constitutional history can help to explain how legislative supremacy and a lack of fundamental rights come to coexist with a constitution that is recognised as the supreme law of the land. The Australian Constitution was adopted in 1900 as an act of the Westminster Parliament^{Footnote 52} and came into effect the following year after a series of confirmatory referendums held in each Australian colony.^{Footnote 53} The High Court was established under the Constitution as a court of appeal for decisions coming from both state and federal courts. The High Court claimed the power of judicial review almost immediately with the pivotal ruling Amalgamated Society of Engineers v. Adelaide Steamship,^{Footnote 54} despite both the absence of an express constitutional provision and the lack of any foothold in the English legal tradition.

The Australian High Court draws its justification for the power of judicial review from the American constitutional experience.^{Footnote 55} Nonetheless, the High Court’s defence of judicial review is primarily based on the need to protect the federal principle vis-à-vis any interference from state legislative power. Indeed, the first cases of judicial review of legislation, adopted in the first decade of the twentieth century, concern claims about legislation passed at the state level. The most emblematic decisions are D’Emden v. Pedder and Wollaston.^{Footnote 56} Both cases concerned the state power of taxation. In both cases, the High Court found that the exercise of this power on the part of the states had infringed upon federal legislative power that was expressly referred to as absolute and free from any interference except that prescribed by the constitution itself. By contrast, the Court did not insist much on the constitutional duty to curb the overflow of the legislative power in a more general manner.

Later on, the High Court clarified that the power of judicial review was “axiomatically” part of the Australian constitutional system.^{Footnote 57} Such reasoning, however, does not simply mirror Marbury v. Madison. The Australian judges explained that the principle encapsulated in Marbury needs to be mitigated and adjusted to the Australian constitutional framework. The judges sought in the text of the Constitution the foundation for the power of judicial review. First, from Article 5, which expresses the obligation to legislate “under the Constitution,” the High Court derived the obligation to verify the constitutionality of the product of legislative activity.^{Footnote 58} Second, the Court also referred to Article 76(i), which gives Parliament the power to extend the original jurisdiction of the Court to “any matter arising under this Constitution or involving its interpretation.”^{Footnote 59} Finally and more recently, the Court used Article 75, which attributes to the High Court the original jurisdiction on a series of matters, as a sign of the existence of an “entrenched minimum provision of judicial review.”^{Footnote 60}

Even with the consolidation of a constitutional practice, however, the Australian legal system still struggles with the concept of constitutional supremacy. In a famous judgement, the High Court stated: “[T]here is no constitutional ground whatever for holding that Federal legislation with respect to matters within federal power cannot affect civil rights, proprietary or others.”^{Footnote 61} There is therefore no constitutional obstacle to the limitation of the enjoyment of rights by the sovereign legislator, when it acts according to the procedures provided for in the Constitution. The concept of constitutional supremacy then does not imply that the Constitution is all-powerful in its own polity.

In Canada, the development of constitutional doctrines, after the codification of fundamental rights and the modest influence of the neighbouring American Constitution, have created a different scenario for constitutional supremacy.

The first constitutional text, the Constitution Act of 1867, unified the four initial provinces in the Canadian Dominion.^{Footnote 62} Over the following century, a series of constitutional instruments succeeded one another,^{Footnote 63} leading to the Canada Act of 1982.^{Footnote 64} The Act includes the Canadian Constitution, a text created through a local constituent process,^{Footnote 65} and an entrenched Charter of Rights and Freedoms, as well as the recognition of customary and treaty law concerning aboriginal peoples’ rights and human rights. In 1988, the Act was patriated through a British parliamentary act that conferred full powers on the federal government of Canada.

Article 52.1 of the Act declares the Constitution to be the “supreme law of Canada” and then specifies that “[a]ny law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”^{Footnote 66} So the Canadian Supreme Court justified its power of constitutional adjudication even in the absence of any express constitutional provision. Constitutional adjudication, however, is not really a claim of a brand-new form of judicial authority (a vindicatio potestatis), as was the case in the US. Indeed, constitutional adjudication has been justified on traditional grounds. The Supreme Court pointed out the continuity between judicial scrutiny on the compatibility of Canadian laws with Imperial Instruments, framed under the ultra vires doctrine, and the judicial review of legislation in light of the Constitution and the Charter.^{Footnote 67} Moreover, the Supreme Court grounded its power of constitutional adjudication on the Canadian Parliament’s decision to entrench the Charter in the 1982 Constitution. Therefore, constitutional review in Canada is justified on the ultra vires tradition as well as on a decision of self-limitation of parliamentary sovereignty.^{Footnote 68}

Ultimately, the supremacy of the Canadian Constitution—and therefore its ability to express binding rules of conduct as well as to limit parliamentary sovereignty—rests on its suitability to be applied in combination with a system of principles and values that draws a line of continuity from the British tradition to present times.

Such reasoning mirrors the English sensibility to the principle of parliamentary sovereignty, which is differently celebrated in Canada and Australia. In Australia, the judicial review of legislation originates, to some extent, from the need to protect the federalist principle, rather than from the assertion of constitutional supremacy. In Canada, the limitation of the legislative power in favor of constitutional adjudication has been justified as a choice of self-limitation of the elected representatives of the people. In both cases, constitutional supremacy is the starting point of the reasoning, but it does not imply that the constitution is establishing a legal order ruling out both parliamentary sovereignty and the traditional, pre-constitutional legal culture.

It is even too obvious to stress that constitutional theory in the United States departs from radically different premises when compared to Canadian or Australian constitutional foundations. If we stop for a moment at the concept of constitutional supremacy, however, we find the same resistance to a far-reaching idea of what a constitution is supposed to do.

In the narrative of American independence,^{Footnote 69} the Constitution represents the act with which the American people normatively constituted themselves by placing the sharing of values and fundamental principles at the heart of their social contract.^{Footnote 70} In this sense, the Constitution represents the highest form of expression of the sovereignty of the people. “The People” does not exist in a pre-juridical dimension that precedes the Constitution; it is rather constituted in unity at the time of the drafting of the constitutional compact.^{Footnote 71} Therefore, the American Constitution was immediately endowed with a claim to supremacy over ordinary legislation because the Constitution is both the source of legitimation of the legal system and the effectively superior norm. Indeed, James Madison and Alexander Hamilton considered it “paramount to the government.”^{Footnote 72} Most importantly, they both identified in the principle of parliamentary supremacy a threat to individual freedoms. The possibility to change the “most fundamental articles of the government” by legislative acts was depicted as a dangerous practice from which legal uncertainty and “alarm” in the votaries would have resulted.^{Footnote 73} Therefore, freedoms could be secured only by constitutional supremacy.

The original rejection of the principle of parliamentary sovereignty has then allowed constitutional theories of law that are hardly transplantable, without accommodation, in systems of direct English derivation, to develop. Constitutional theories of law refer to those theoretical explanations connecting the supremacy of the Constitution to the need to separate constitutional and ordinary political discourse, with the former shielded from the volubility of parliamentary/majoritarian will.^{Footnote 74} There may be different articulations of the precise boundaries between constitutional and ordinary discourse, but American constitutional theories always point at singling out some political and legal options as unquestionable.^{Footnote 75} Whichever solutions these theories support, the supremacy of the American Constitution is established to shield individual freedoms from the exercise of arbitrary public powers. In this sense, supremacy is not intended to condition the application of any other norms in the legal system, such as those derived from the common law or concerning relationships between private parties. Again, supremacy does not mean the all-powerfulness of the Constitution.

E. The “Gravity” of the Legal Tradition on the Conceptualization of Constitutional Supremacy

The relevance of the legal tradition on the conceptualization of constitutional supremacy can be appreciated in two perspectives: First, the constitution coexists with a large body of laws that are constitutional either because of their content or because of their ability to integrate the constitutional text, and second, the constitution can be, and in fact it is, substantively supplemented, or even subsidised, by the common law.